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RFA No. 923 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 16TH DAY OF JULY, 2025

R
BEFORE

THE HON'BLE MR. JUSTICE [Link] KUMAR

REGULAR FIRST APPEAL NO. 923 OF 2018 (RES)

BETWEEN:

SRI JAYARAMA RAJU

SINCE DECEASED BY LEGAL
REPRESENTATIVES

1. SMT R JAYAMMA
W/O LATE JAYARAMA RAJU
AGED ABOUT 69 YEARS

2. SMT J JAYASHUBA
D/O LATE JAYARAMA RAJU,
AGED ABOUT 40 YEARS

3. SRI JAYAHARI
DEAD BY HIS LRS
Digitally signed
by CHANDANA 3(A) SMT. SHREEDEVI
BM W/O LATE. JAYAHARI
Location: High AGED ABOUT 37 YEARS
Court of R/AT: 1854, 37TH CROSS,
Karnataka 11TH MAIN, 4TH BLOCK,
JAYANAGARA
BENGALURU – 560 078.

4. J JAYARAMA
D/O LATE JAYARAMA RAJU
AGED ABOUT 35 YEARS.

APPELLANT NO.1 TO 4 ARE

R/AT NO.39,4TH CROSS,
MANJUNATHA COLONY,
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J P NAGAR II PHASE,
BANGALORE-560 078.

5. [Link]
S/O LATE MUNISWAMY RAJU,
AGED ABOUT 67 YEARS
R/AT NO.55,MARENAHALLI,
J P NAGAR II PHASE,
BANGALORE-560 078.

6. SRI M SHIVANANDA RAJU

S/O LATE MUNISWAMY RAJU
AGED ABOUT 65 YEARS
R/AT NO.63/A, MARENAHALLI,
J P NAGAR I PHASE,
BANGALORE-560 078.
…APPELLANTS

(BY, SRI. A. RAVI SHANKAR, ADVOCATE FOR

SRI. V.N. SHANKAREGOWDA, ADVOCATE)

AND:

1. SRI A M NARAYANASWAMY RAJU

S/O LATE MUNISWAMY RAJU
AGED ABOUT 75 YEARS
R/AT NO.36, MOHITNAGAR FARM,
BYRASANDRA, AGRA VILLAGE,
TATAGUNI POST, KENGERI HOBLI,
BENGALURU – 560 062.

2. SRI ANAND N RAJU

S/O A M NARAYANASWAMY RAJU,
AGED ABOUT 56 YEARS

3. SMT SHOBHA
D/O A M NARAYANASWAMY RAJU,
AGED ABOUT 46 YEARS

RESPONDENT Nos. 2 & 3 ARE

R/AT B.M BYRASANDRA VILLAGE,
B M KAVAL, KENGERI HOBLI,
BENGALURU SOUTH TALUK – 560 040.

*Retyped and Replaced vide Chamber order dated:16.10.2025

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4. SRI V M VISHWANATH
S/O SRI MADEGOWDA
AGED ABOUT 45 YEARS
VADDARAHALLI VILLAGE,
CHOTTANAHALLI POST,
MALAVALLI TALUK,
MANDYA DISTRICT – 571 430.

5. SRI S GANGADHAR
S/O LATE SIDDALINGAPPA
AGED ABOUT 52 YEARS
R/AT KONANAKUNTE VILLAGE,
KANAKAPURA ROAD,
BENGALURU-560 062.

6. SMT KAMALA
D/O SMT VENKATAMMA AND
SHRI CHANGAMARAJU
AGED ABOUT 48 YEARS.

7. SMT PUSHPA
D/O SMT VENKATAMMA AND
SHRI CHANGAMARAJU
AGED ABOUT 46 YEARS.

RESPONDENTS 6 & 7 ARE R/AT

MANJUNATHA COLONY
MARENAHALLI, [Link]
II PHASE, BENGALURU – 560 078.

8. SRI RAVINDRA
S/O SMT VENKATAMMA AND
SHRI. CHANGAMARAJU

SINCE DEAD BY HIS LRS ON RECORD I.E.,

RESPONDENT NO. 9

(AS PER THE COURT ORDER DATED: 28.08.2023)

9. SMT MAHALAKSHMI
D/O LATE A M KRISHNAM RAJU
AGED ABOUT 44 YEARS.
(WRONGLY MENTIONED AS SRI K.
KRISHNAM RAJU)
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10. SRI LAVA KUMAR

D/O LATE A M KRISHNAM RAJU,
AGED ABOUT 42 YEARS.

RESPONDENT NOS. 9 & 10 ARE

R/AT NO. 66, 21-A MAIN
MARENAHALLI, [Link] II PHASE,
BENGALURU – 560 078.

11. SRI M SRINIVASA RAJU

S/O LATE MUNISWAMY RAJU
AGED ABOUT 68 YEARS.
R/AT NO.66,1ST FLOOR,
J P NAGAR, BANGALORE-560 078.
…RESPONDENTS

(BY SRI. [Link], SENIOR ADVOCATE APPEARING FOR

SRI. PRAVEEN KUMAR NIRVANI, ADVOCATE FOR R-1(A), R-2, R-3 & R-5
SRI. C.S. KANTHARAJU, ADVOCATE FOR R-4)

(R-6, R-7, R-9, R-10 – SERVED

(VIDE ORDER DATED: 27.09.2022 SERVICE IS HELD SUFFICIENT)
(ORDER DATED: 28.08.2023 R-9 IS TREATED AS LR.S OF DECEASED
OF R-8)

THIS RFA FILED UNDER SEC.96 OF THE CPC., AGAINST THE

JUDGMENT AND DECREE DATED 17.03.2018 PASSED IN OS
NO.8050/1999 ON THE FILE OF THE XXII [Link] CIVIL AND SESSIONS
JUDGE, BENGALURU PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION & ETC.,

THIS APPEAL BEING HEARD AND RESERVED ON 25.04.2025

COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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CORAM: HON'BLE MR. JUSTICE [Link] KUMAR

CAV JUDGMENT

This appeal by the unsuccessful plaintiffs in

[Link].8050/1999 is directed against the impugned judgment and

decree dated 17.03.2018 passed by the XXII [Link] Civil and

Sessions Judge, Bangalore, whereby the said suit filed by the

appellants – plaintiffs against the respondents – defendants for

partition and separate possession of their share in the suit

schedule properties and other reliefs was decreed in part only in

respect of Item No.2 of the suit schedule properties and the suit in

relation to the remaining Item No.1 and Item Nos. 3 to 11 of the suit

schedule properties was dismissed by the trial court.

2. Briefly stated the facts giving rise to the present appeal

are as under:-

The plaintiffs instituted the aforesaid suit interalia contending

that one Muniswamy Raju was the propositus who died in 1955

and his wife [Link] expired on 22.07.1980. The

plaintiffs 1 to 3 are the wife and children of late Krishnam Raju, one

of the sons of the aforesaid Muniswamy Raju and

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Subbalakshmamma and plaintiffs 4 to 7 are also the sons of the

said Muniswamy Raju and Subbalakshmamma. The 1st defendant

is also one more son of the said Muniswamy Raju and

Subbalakshmamma, while defendants 2 and 3 are the children of

1st defendant. The aforesaid Muniswamy Raju and

Subbalakshmamma had a daughter Venkatamma whose children

are defendants 6 to 8. Defendants 4 and 5 are said to be alienees

in respect of Items 3 to 6 of the suit schedule properties. The other

two daughters of Muniswamy Raju and Subbalakshmamma viz.,

Narayanamma and Lakshmamma died without leaving behind any

heirs. It was contended that all the suit schedule properties are joint

family properties and since the defendants did not comply with the

demand for partition made by the plaintiffs, they instituted the

aforesaid suit seeking the aforesaid reliefs.

2.1 In the first instance, the instant suit was dismissed by

the trial court vide judgment and decree dated 12.11.2008 which

was assailed by the appellants – plaintiffs before this Court in

[Link].407/2009. By final order dated 03.09.2013, this Court set

aside the said judgment and decree passed by the trial court and

remitted the matter back to the trial court for reconsideration afresh
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with a direction to the respondents – defendants to file their written

statement within a period of three weeks from their date of

appearance. However, since the 1st defendant did not file his

written statement within the aforesaid period of three weeks, the

written statement filed by him later was rejected by the trial court on

17.11.2014 on the ground that the same was not filed within the

period of three weeks as directed by this Court. So also, the

written statement of defendants 2 to 5 was taken as ‘not filed’ vide

order dated 26.08.2014 by the trial court. Further, though the

defendants 2 and 3, sons of 1st defendant attempted to re-file one

more written statement of 1st defendant on 13.03.2018 which was

the same that was sought to be filed by 1st defendant earlier, even

this written statement was not taken on record by the trial court

since the request of their father, 1st defendant had already been

rejected earlier and the same had attained finality and become

conclusive and binding upon all defendants 1 to 3.

2.2 Defendants 4 and 5 who claimed to be the purchasers

filed their written statement disputing the plaint averments and

sought for dismissal of the suit. Defendants 6 to 8 have supported

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the claim of the plaintiffs and filed a memo dated 28.08.2017

stating that they had no objection for the suit to be decreed.

2.3 Based on the aforesaid pleadings, the trial court framed

the following issues:-

“ 1. Whether the plaintiffs prove that suit properties are

the Joint family properties of the plaintiffs and defendant
No.1.?
2. Whether the plaintiffs have got 1/6th share each in
all the suit properties?
3. Whether the plaintiffs are entitled to mesne profits
in respect of suit properties?
4. Whether the plaintiffs are entitled to permanent
Injunction against defendants as prayed for in the Suit?
5. What Order is Decree? “

2.4 The 6th plaintiff was examined as PW-1 and

documentary evidence at Exs.P1 to P92 were marked on behalf of

the plaintiffs. The 2nd defendant was examined as DW-1 and

Exs.D1 to D27 were marked. The trial court came to the conclusion

that out of 11 Items of suit schedule properties, only item No.2 was

a joint family property, in which, the plaintiffs were entitled to a

share and accordingly, decreed the suit in respect of Item No.2 and

dismissed the suit in respect of remaining Item No.1 and Item

Nos.3 to 11 of the suit schedule properties. Being aggrieved by the

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impugned judgment and decree, insofar as it relates to dismissal of

the suit in respect of Item Nos.1 and 3 to 11 of the suit schedule

properties, appellants – plaintiffs are before this Court by way of

the present appeal.

3. Heard learned counsel for the appellants and learned

Senior counsel for the respondents and perused the material on

record.

4. The following points arise for consideration in the present

appeal:-

(i) Whether the trial court was justified in dismissing the suit

of the plaintiffs in respect of Item No.1 of the suit schedule

properties?

(ii) Whether the trial court was justified in dismissing the suit

of the plaintiffs in respect of Item Nos. 3 to 6 of the suit schedule

properties?

(iii) Whether the trial court was justified in dismissing the suit

of the plaintiffs in respect of Item Nos.7 to 11 of the suit schedule

properties?
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(iv) Whether the impugned judgment and decree passed by

the trial court warrants interference by this Court in the present

appeal?

Re- Point No.1:-

5. At the outset, it is necessary to reiterate that the 1st

defendant - Narayanaswamyraju is the father of defendants 2 and

3 and the brother of Krishnamraju whose legal heirs are plaintiffs 1

to 3; plaintiffs 4 to 7 are the brothers of the said Krishnamraju and

Narayanaswamyraju; the contesting defendants are defendants 1

to 3 and defendants 4 and 5 who are the alienees in respect of

Items 3 to 6 of the suit schedule properties.

It is a matter of record that initially, the suit was filed by the plaintiffs

only as against the defendant No.1(sole defendant). As stated

supra, the said suit was dismissed by the trial court vide judgment

and decree dated 12.11.2008 and in the appeal preferred by the

plaintiffs – appellants herein in [Link].407/2009, this Court

allowed the appeal vide judgment dated 03.09.2013 and remitted

the matter back to the trial court for reconsideration afresh in

accordance with law and by issuing certain directions as

hereunder:-
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“ The plaintiffs are the appellants. The suit for partition

came to be dismissed against which this appeal is filed.
2. It is submitted by the learned counsel that the
plaintiffs and the defendants are brothers and sisters and
they are living in a joint family. The family property was not
partitioned and since the plaintiffs were working elsewhere in
different places, the defendant was residing in the village and
he was looking after the affairs of the property. Hence the
suit was filed for partition of the suit schedule property.
3. The suit came to be dismissed on the ground
that the plaintiffs failed to establish status of the joint family
and its properties. The plaintiffs are working in Indian
Railway, H.A.L and I.T.I This shows that there was no
jointness of the property and family. The ground urged by the
appellants is that there was earlier partition and exhibits have
been marked in which names of brother and sisters have
been referred. The land granted in favour of the defendant
was to the family and the evidence adduced by the
defendant before the Land Tribunal shows that brothers have
not partitioned the property and they are living together.
Despite these materials, the court below has dismissed the
suit which is an error. The reliance is placed on the judgment
reported in ILR 1998 KAR 2655 where it has been held that if
the defendant fails to file written statement and participate in
the proceedings, the suit of the plaintiff for the purpose of
Order 8 Rule 10 and Order 17 Rule 3 of CPC, it is to be
presumed case in favour of the plaintiff.
4. The learned counsel for the defendant-
respondent submits that the respondent was not aware about
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the proceedings and out come of the judgment in the suit.

They noticed the judgment only when this Court notice has
been served on them. The trial court placed them ex-parte. In
order to put their defence, he submits to remand the matter
reserving livery tot place the evidence and materials.
5. I have heard both. From the order it is shown
that the defendant is placed ex-parte. The submission of the
respondent that he noticed about the judgment only when
this Court notice has been served on him. The suit of the
appellants ahs been dismissed on the ground that they have
not satisfied the Court about the status of the family and its
property. Though the findings recorded by the Court below
are by referring the evidence and materials placed on record
is one thing but the fact remains, in the ends of justice, the
matter required to be remanded by permitting both the
parties to adduced their evidence and place the materials.
The judgement relied upon by the appellants, it is held that
when the defendants fail to make out their case either by
filing written statement or the evidence and materials, the
case in favour of the plaintiffs has to be presumed. If this is
followed, it definitely deprives opportunity and justice in
favour of the defendants. Hence I pass the following:
ORDER
The judgment passed by the court below is set aside.
The matter is remanded for fresh consideration. The plaintiffs
are permitted to adduce further evidence and place on record
the additional materials. The defendant is permitted to file
written statement within a period of three weeks from the
date of appearance before the trial Court and adduce
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evidence and placed on record the materials. The parties are

directed to appear before the court below on 11.10.2013.”

5.1 As can be seen from the aforesaid order passed by this

Court, upon remand, this Court directed the 1st defendant to file his

written statement within a period of three weeks from the date of

appearance on 11.10.2013. In pursuance of the said remand order,

the 1st defendant did not file his written statement and attempted to

file the same beyond the period of six weeks fixed by this Court

and the trial court rejected the written statement of 1st defendant

vide order dated 17.11.2014, which attained finality and became

conclusive and binding upon the 1st defendant; if follows therefrom

that there was / is no written statement filed by the 1st defendant in

the suit before the trial court.

5.2 After remand, defendants 2 to 8 were impleaded and

while defendants 4 and 5 – alienees filed their written statement

and contested the suit, defendants 6 to 8 admitted the claim of the

plaintiff by filing a memo dated 28.08.2017 to the effect that they do

not have any objection for the suit to be decreed as prayed for by

the plaintiffs.
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5.3 Defendants 2 and 3, sons of 1st defendant also did not

file their written statement and the same was taken as ‘not filed’

vide order dated 26.08.2014 passed by the trial court.

Subsequently, defendants 2 and 3 attempted to once again present

the written statement of 1st defendant on 13.03.2018 which was

also rejected by the trial court.

5.4 The aforesaid facts and circumstances regarding non-

filing / rejection of the written statement of the contesting

defendants 1 to 3 has been recorded / noticed by the trial court at

paragraphs-3, 4, 5 and 6 of the impugned judgment and decree. It

follows therefrom that the various averments made by the plaintiffs

in their suit have not been disputed or denied by defendants 1 to 3,

who have not filed their written statement and the pleadings of the

plaintiffs clearly remained unchallenged, uncontroverted and

unimpeached by defendants 1 to 3 in relation to all the suit

schedule properties. In other words, there are absolutely no

pleadings on record on behalf of defendants 1 to 3 in the suit and

all their attempts were rejected by the trial court.

5.5 In the backdrop of the aforesaid facts and

circumstances, a perusal of the impugned judgment and decree

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dismissing the suit of the plaintiffs in relation to Item No.1 of the suit

schedule properties will indicate that under Ex.P19, Item No.1 was

sold in favour of the propositus Muniswamyraju on 16.09.1933. As

stated supra, the propositus Muniswamyraju and his wife

Subbalakshamamma having expired in the year 1955 and on

22.07.1980 respectively, Item No.1 of the suit schedule property

has clearly devolved upon all their children including the plaintiffs

who would accordingly be entitled to their legitimate share in this

property.

5.6 While dealing with this Item No.1 of the suit schedule

property, the sole reason assigned by the trial court in rejecting the

claim of the plaintiffs is by coming to the erroneous conclusion that

Ex.P19 is a sale agreement which did not relate to this property;

the said finding recorded by the trial court is wholly / factually

incorrect and erroneous, inasmuch as a perusal of the said sale

deed marked as Ex.P19 is sufficient to come to the conclusion that

it is a sale deed and not a sale agreement as wrongly held by the

trial court.

5.7 As stated earlier, upon the demise of Muniswamyraju in

the year 1955 and his wife Subbalakshmamma on 22.07.1980, this

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Item No.1 of suit schedule property would devolve upon all their

heirs including the plaintiffs, who would accordingly be entitled to

their legitimate share in this property and failure to appreciate this

by the trial court has resulted in erroneous conclusion. Under these

circumstances, I am of the view that the impugned judgment and

decree passed by the trial court dismissing the suit of the plaintiffs

in relation to Item No.1 of the suit schedule property deserves to be

set aside and suit of the plaintiffs deserves to be decreed in this

regard.

5.8 It is a matter of record that the suit was filed in the year

1999 and during its pendency, the 1st defendant appears to have

gifted Item No.1 of the suit schedule properties in favour of his wife

Smt. Padmavati as per gift deed dated 31.03.2012. It is needless to

state that this gift made by the 1st defendant on 31.03.2012 during

the pendency of the suit instituted in 1999 is clearly hit by the

doctrine of lis pendens and the principles contained in Section 52

of the Transfer of Property Act and consequently, the said pendente

lite transfer of this property would neither be binding upon the

plaintiffs nor affect their share in this property. Under these

circumstances, the said gift and the contention urged on behalf of

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the defendants in this regard cannot be accepted and the plaintiffs

would be entitled to their legitimate share in Item No.1 of the suit

schedule properties.

Accordingly, Point No.1 is answered in favour of the

appellants – plaintiffs by holding that they are entitled to 1/6th share

each in item No.1 of the suit schedule properties and the present

appeal deserves to be allowed by setting aside the impugned

judgment and decree passed by the trial court and by decreeing

the suit of the appellants – plaintiffs as prayed for by them in this

regard.

Re-Point No.2:-

6. A perusal of the material on record and the impugned

judgment and decree will indicate that insofar as Items Nos. 3 to 6

of the suit schedule properties comprising of agricultural lands

bearing [Link].30 (New No. 30/1 and 30/2), [Link].31, [Link].32

and [Link].36 being agricultural lands are concerned, the trial court

rejects the claim of the plaintiffs on the ground that these properties

were not joint family properties and that the same are separate and

self-acquired properties of 1st defendant alone by placing reliance

on Ex.P30, Order of the Land Tribunal granting occupancy rights in

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favour of 1st defendant. In this context, the trial court failed to

consider and appreciate that though the 1st defendant had filed

application in Form No.7 in the said proceedings before the Land

Tribunal, the applicant - Narayanaswamy i.e., 1st defendant had

given a statement / evidence vide Ex.P18 admitting that -himself

and his brothers viz., the plaintiffs 4 to 7 and late Krishnam Raju

(husband of Plaintiff No.1, father of plaintiffs 2 and 3) were

members of HUF/ joint family and that there was no partition/

division between them at that time. In the said statement /

deposition of 1st defendant also admits that he himself and his

brothers were cultivating lands jointly.

6.1 The plaintiffs have also produced the revenue records, in

particular Exs.P23 to P26 which indicate that at the time of 1st

defendant filed an application in Form No.7 seeking grant of

occupancy rights, the revenue records stood in the name of 1st

defendant and his brothers which would also indicate that all of

them were jointly cultivating the lands. Further, in his evidence

before the Land Tribunal vide Ex.P58, 1st defendant also admits

that certain joint family properties standing in the name of late

Subbalakshmamma (mother of parties) in [Link].101 measuring 2

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Acres 24 guntas was acquired under the Land Acquisition Act,

1894 and the compensation was received by the 1st defendant in

1971-72 which was utilized by him for cultivation/ development /

improvement / construction on Item Nos.3 to 6 of the suit schedule

properties. In fact, the award passed by CITB, Bangalore shows

the name of Anubhavdar as Subbalakshmamma along with

Defendant No.1 and plaintiff Nos. 4 to 7 and Krishnam Raju which

is pointer to the fact that Item Nos. 3 to 6 which were developed

and improved with the aid of joint family funds arising out of

acquisition of joint family property were also joint family properties;

in other words, the conduct of the parties at an undisputed point in

time in utilizing joint family funds received by way of compensation

from acquisition of joint family property in land bearing [Link].101/2

for the purpose of cultivation / development / improvement /

construction etc., of Item Nos.3 to 6 would also indicate that these

properties are also joint family properties and were being cultivated

by the joint family and that 1st defendant had filed the application

Form No. 7 seeking grant of occupancy rights for and on behalf of

the joint family and not in his individual capacity.

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6.2 In the plaint, plaintiffs have specifically contended that

Item Nos. 3 to 6 were joint family properties and though occupancy

rights were granted in his individual name, the same would enure

to the benefit of all joint family members including the plaintiffs. As

stated supra, defendant Nos. 1 to 3 have not filed any written

statement disputing or denying the plaint averments and the

attempts made by defendant Nos.1 to 3 to file their written

statement were rejected by the trial court and the said orders have

attained finality and become conclusive and binding upon the

defendants.

6.3 It follows therefrom that there is absolutely no denial at

all, much less specific denial of the plaint averments that Item Nos.

3 to 6 are joint family properties. In this context, there is gainsaying

the fact that it is trite law that no amount of evidence can be looked

into in the absence of pleadings and consequently, in the absence

of the written statements of defendant Nos. 1 to 3, who have also

not adduced any contrast / rebuttal evidence, the sole inference to

be drawn from the facts and circumstances of the instant case is by

coming to the conclusion that Item Nos.3 to 6 are also joint family

properties.
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6.4 In the case of Arikala Narasa Reddy v. Venkata Ram

Reddy Reddygari - (2014) 5 SCC 31, this Court held as under -

15. This Court has consistently held that the court

cannot go beyond the pleadings of the parties. The parties
have to take proper pleadings and establish by adducing
evidence that by a particular irregularity/illegality, the result of
the election has been “materially affected”. There can be no
dispute to the settled legal proposition that “as a rule relief
not founded on the pleadings should not be granted”. Thus, a
decision of the case should not be based on grounds outside
the pleadings of the parties. In the absence of pleadings,
evidence if any, produced by the parties, cannot be
considered. It is also a settled legal proposition that no party
should be permitted to travel beyond its pleadings and
parties are bound to take all necessary and material facts in
support of the case set up by them. Pleadings ensure that
each side is fully alive to the questions that are likely to be
raised and they may have an opportunity of placing the
relevant evidence before the court for its consideration. The
issues arise only when a material proposition of fact or law is
affirmed by one party and denied by the other party.
Therefore, it is neither desirable nor permissible for a court to
frame an issue not arising on the pleadings. The court cannot
exercise discretion of ordering re-counting of ballots just to
enable the election petitioner to indulge in a roving inquiry
with a view to fish material for declaring the election to be
void. The order of re-counting can be passed only if the
petitioner sets out his case with precision supported by
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averments of material facts. (Vide Ram Sewak

Yadav v. Hussain Kamil Kidwai [AIR 1964 SC 1249]
, Bhabhi v. Sheo Govind [(1976) 1 SCC 687 : AIR 1975 SC
2117] and M. Chinnasamy v. K.C. Palanisamy [(2004) 6 SCC
341] .)

6.5 It is therefore clear that the trial court failed to

appreciate that the absence of pleadings / written statement of

defendant Nos.1 to 3 would militate against them and the plaintiffs

would be entitled to their legitimate share in Item Nos.3 to 6 of suit

schedule properties.

6.6 As stated supra, defendant Nos. 1 to 3 have not set up

any defence of any earlier partition between the joint family

members prior to application for grant of occupancy rights being

filed by the 1st defendant; so also, defendant Nos. 1 to 3 have not

placed any legal or acceptable material to establish that application

for grant of occupancy rights was filed by the 1st defendant in his

individual capacity and not on behalf of the joint family; it is well

settled that occupancy / tenancy rights granted in favour of any

member of a joint family would enure to the benefit of the entire

joint family.
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6.7 In the case of B.L. Sreedhar v. K.M. Munireddy - (2003)

2 SCC 355, the Apex Court held as under:-

9. First we deal with the stand of the appellant that

on regrant benefit enures to the members of the family.
Learned counsel for the respondents fairly accepted this
legal position and in our view rightly, because of what has
been said by this Court in Nagesh Bisto
Desai v. KhandoTirmal Desai [(1982) 2 SCC 79]
, KalgondaBabgonda Patil v. BalgondaKalgonda
Patil [1989 Supp (1) SCC 246] and New Kenilworth
Hotels (P) Ltd. v. Ashoka Industries Ltd. [(1995) 1 SCC
161] Therefore, indisputable legal position is that even if
grant is made under the Act to any member of the family,
the benefit enures to the whole family. Having cleared this
legal position, the contentious issues need to be noted.
First comes the question whether the rule of estoppel is
applicable. The factual background highlighted by the
High Court to hold about its applicability is as follows:
Though the plaintiff was not a party to several proceedings
referred to by the parties, the conduct of the plaintiff clearly
shows in the background of evidence tendered that he was
conscious of the proceedings. One instance in this regard
would suffice. Defendant 3 filed an application in Form 7 of
the Karnataka Land Reforms Act, 1961 claiming
occupancy rights in respect of particular items of
agricultural land. Defendants 1 and 2 claimed ownership of
the land, they were duly notified and after hearing both
sides, the Tribunal allowed the claim of Defendant 3. It was
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brought to the notice of the High Court when challenge was

made to the order of the Tribunal, that the plaintiff was one
of the members of the Tribunal. He had participated in the
proceedings in question though he had retired in the
middle. The Tribunal cannot be said to have not been
influenced to some extent at least by his presence. The
High Court in Writ Petition No. 4430 of 1978 referred to the
orders of the Tribunal and came to hold that on the date of
hearing the plaintiff was withdrawn from the proceedings.
No definite material was placed before it to show as to
what was done on the date when the petition had been
heard and orders were pronounced. To meet the ends of
justice, the High Court quashed the order passed by the
Tribunal and directed further inquiry and further directed to
render a decision in accordance with law. Undisputedly,
the Tribunal reheard the matter and held against
Defendant 3. Attempts before the High Court did not bring
any result.

6.8 So also in the case of Annasaheb Bapusaheb Patil

and Others v. Balwant Alias Balasaheb Babusaheb Patil

(Dead) by Lrs. and Heirs Etc., - (1995) 2 SCC 543, the Apex

Court held as under:-

8. The same ratio proprio vigore would apply to the

facts in this case as well. It is seen that by operation of
S.3 Watans have been abolished and all the incidents
attached to the watandari including the pre-existing
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custom, operation of law or any decree or order of the

Court were nullified by statutory operation. Thereby, the
incidents attached to the watan i.e. liability to render
service as patel became extinct and the lands became
ryotwari lands, office of watan stood extinguished, the
lineal primogeniture stood abolished and the land on
regrant became the Hindu joint family property held by
the watandar for and on behalf of the members of the
joint Hindu family. All the members of the family became
entitled to claim right to partition by survivorship.

6.9 In the case of Shivappa Tammannappa

Karaban v. ParasappaHanammappa Kuraban and Others-

1994 AIR SCW 5031, the Apex Court held as under;

5. ……This order is consistent with Sec. 5(3).

Therefore, the right given to the appellant while making the
regrant was only a pre-existing right namely the property
attached to the office and shall continue to be enjoyed and
belonged to the family and it is impartible by rule of
primogeniture. But on account of abolition of the office and
grant of ryotwari patta, they became partible subject to the
conditions under Section 5(3). We hold that the appellant
has no exclusive right to the property and accordingly, we
do not find any illegality in the decree for partition granted
by the courts below.
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6.10 A Co-ordinate Bench of this Court in the case of

Imamsa Chandas Gurikar vs. Mohdinsa Nabisa Gurikar – ILR

2020 KAR 4867 held as under:-

“30. Having heard Learned Counsel for the parties and

on perusal of the material on record as well as the original
record, the following points would arise for my
consideration:
(i) Whether the suit schedule lands being attached to
office of walikar and regranted to Nabisa under
KVOA Act, 1961 would enure to the benefit of all the
members of the family of Chandsa?
(ii) Whether the appellant-plaintiffs are entitled to seek
the relief of partition and separate possession in
respect of the suit lands and the house properties?
(iii) Whether the judgment and decree of the trial Court
would call for any interference in this appeal?
(iv) What order?

XXXXXXXXXXX
[

36. Before venturing to answer point No. 1, it would

be useful to refer to the decisions cited at the Bar relating
to various aspects of the erstwhile village office of walikar
held by persons in this part of the State; the emoluments
attached to the said office; abolition of the said offices, the
consequences following the abolition of the village offices
so as to give a finding on two aspects of the matter. Firstly,
as to whether the appointment of Nabisa to the office of
walikar was exclusive based on his own merit and
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qualification and in his individual capacity (and not based

on heredity on the principle of primogeniture) so that the
benefits of the said office would not enure to the other
members of the family. Secondly, as to whether, the order
of regrant of the suit lands made in the name of Nabisa
was on the basis that Nabisa only had the right to enjoy the
said lands on its regrant and not to the benefit of all other
members of the family of Chandsa and that on his demise,
the legal heirs of Nabisa only were entitled to succeed to
the said lands.
37. In order to answer the aforesaid aspects, which
would arise under point No. 1, it would be useful to
encapsulate the ratio of the judgments cited by the Learned
Counsel for the respective parties at the first instance.
38. Learned Counsel for appellants has relied upon the
following decisions in support of his submissions
a) NAGESH BISTO DESAI v. KHANDO TIRMAL
DESAI [(1982) 2 SC 79.] , (Nagesh Bisto Desai):
(i) The aforesaid was a case which arose under the
Bombay Parganaand KulkamiWatans (Abolition)
Act, 1950 (for short “Act 60 of 1950”). The principal
question in controversy in those appeals was, as to,
whether, Sections 3 and 4 of the said Act and
Sections 4 and 7 of the Bombay Merged Territories
Miscellaneous Alienation's Abolition Act, 1955 (for
short “Act 22 of 1955”), which provided for abolition
of watans and alienations in the merged territories,
resumption of watan land and its regrant to the
holder for the time being, which brought about a
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change in the tenure or the character of holding as

watan land, affected the other legal incidents of the
property under personal law.
(ii) In the said case, the suit was filed inter alia seeking
a declaration that the properties described in
Schedule B and C appended to the plaint therein,
situated in the district of Dharwar, in the State of
Karnataka, formed an impartible estate and
governed by the rule of lineal primogeniture and that
the plaintiff therein being the present holder of the
office of Desai was entitled to remain in full and
exclusive possession and enjoyment of the suit
properties and that the other members of the family
had no right, title or interest therein but were only
entitled to maintenance and residence. Alternatively,
in the event of the Court holding that the properties
described in Schedule B, C and D therein were
properties belonging to the joint Hindu Family could
the plaintiff claim 1/6th share in the said properties.
Plaintiff's father, in that case was the last holder of
the office of Desai and plaintiff claimed that he was
entitled to remain in full and exclusive possession
and enjoyment of the properties as watandar and
that other members had no right, title or interest
therein except as to maintenance as junior
members.
(iii) Before the Hon'ble Supreme Court it was argued
that impartibility of the tenure was not an incident of
the grant but the watan was impartible by custom
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and succession to it was governed by the rule of

lineal primogeniture. The Hon'ble Supreme Court
considered the question, whether impartibility of the
estate and the rule of lineal primogeniture by which
succession to it was governed made the suit
properties self-acquired or exclusive properties of
the plaintiff therein and therefore, could not be
partitioned by metes and bounds between the
members of the joint family. While considering the
said question, the Hon'ble Court observed that the
grant of watan to the eldest member of a family did
not make the watan properties the exclusive
property of the person who was the watandar for the
time being. The said decision was in the context
ofthe rights of persons belonging to joint Hindu
family and the Hon'ble Supreme Court observed that
the impartibility of the property does not perse
destroy its nature as joint family property or render it
the separate property of the last holder, so as to
destroy the right of survivorship; hence, the estate
retains its character of joint family properties and
devolves by the general law upon that person who,
being in fact and in law joint in respect of estate, is
also senior member in the senior line.
(iv) Relying upon the decision of Privy Council in the
case of ANANT BHIKAPPA PATIL v. SHANKAR
RAMCHANDRA PATIL, reported in AIR 1943 PC
196, the Hon'ble Supreme Court observed that an
impartible estate is not held in coparcenary though it
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may be joint family property It may devolve as joint

family property or as separate property of the last
male holder. In the former case, it goes by
survivorship to that individual, among those male
members who in fact and in law are undivided in
respect of the estate, who is singled out by the
special custom e.g. lineal male primogeniture. In the
latter case, jointness and survivorship are not as
such in point, the estate devolves by inheritance by
the last male holder in the order prescribed by the
special custom or according to the ordinary law of
inheritance as modified by the custom.
(v) Thereafter, the Hon'ble Supreme Court considered
as to whether the estate attached to the office of the
watandar was entitled to remain in full and exclusive
possession and enjoyment thereof to the exclusion
of the other members of the joint Hindu family and
held that if the watan land attached to such an office
was held to be in full exclusive possession and
enjoyment of the watandar to the exclusion of the
other members of the joint Hindu family, that would
run counter to the scheme of the Bombay Hereditary
Offices Act, 1874 (now the Maharasthra Hereditary
Offices Act) (also known as “Watan Act”) and is
against settled legal principles. The Hon'ble
Supreme Court concluded that the right of the
plaintiff in that case in the watan property was
subject to the rights of the other members of the
family. While saying so, definition of watandar under
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Watandar Act, was referred to in the following

terms:—
“‘Watandar’ means a person having an
hereditary interest in a watan. It includes a person
holding watan property acquired by him before the
introduction of British Government into the locality
of the watan, or legally acquired subsequent to
such introduction, and a person holding such
property from him by inheritance. It includes a
person adopted by an owner of a watan or part of
a watan, subject to the conditions specified in
Sections 33 and 35.”

(vi) After referring to the said definition the Hon'ble

Supreme Court noted that if the words used in the
definition are strictly and literally construed, it would
mean that before a person can be said to be a
watandar, he must have a hereditary interest both in
the watan property and in the hereditary office,
because it is these two that constitute the watan.
There is no basis whatever for such a strict
construction. The definition is undoubtedly in two
parts : the first sets out what ‘watandar’ means and
the other, states what is included in it and the
question arises whether the primary definition i.e.,
the meaning portion of it, should be regarded as
primary and the inclusive part as illustrative or both
the parts should be regarded as constituting one
whole definition, the inclusive part being
supplementary to the former. After discussing the
controversy on the aforesaid two lines of
interpretation the Hon'ble Supreme Court noted that
Watan Act was designed to preserve the pre-
existing rights of the members of a joint Hindu
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family. The word ‘family’ is defined in Section 4 of

the Watan Act to include “each of the branches of
the family descended from an original watandar” and
the expression ‘head of a family’ is defined thereinto
include “the chief representative of each branch of a
family”. Section 4, which defines watandar includes
the members of the joint Hindu family and
expression of the watan would include the members
of the family other than the watandar, who are
entitled to remain in possession and enjoyment of
the watan property.
(vii) It was further observed that the commutation of
service had not the effect of changing the nature of
the tenure and that even after service, the watan
office ordinarily survives without liability to perform
service, and on that account the character of watan
property still remains attached to the grant. But the
State Government may abolish the office and
release the property from its character as watan
property.
(viii) Further, Act 60 of 1950, had the effect of abolition
of the watan, extinction of the office and modification
of the right in which the land is held vide Section 3 of
the said Act and the same brought about a change
in the tenure or character of holding as watan land
but they did not affect the other legal incidents of the
property under personal law. That sub-Section (1) of
Section 4 of the Act 60 of 1950, deals with regrant of
watan land, Act 22 of 1955 was on similar terms.
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That the watan lands resumed under the aforesaid

Acts had to be regranted to the holder of the watan
and he was to be deemed to be an occupant.
(ix) In this context, the Hon'ble Supreme Court referred
to the Watan Act and observed that it contemplated
two classes of persons : one is a larger class of
persons belonging to the watan families having a
hereditary interest in the watan property as such
and, the other, smaller class of persons who were
appointed as representative watandars and who
were liable for the performance of duties connected
with the office of such watandars. That it would not
be correct to limit the word ‘watandar’ only to the
narrow class of persons who could claim to have a
hereditary interest both in the watan property and in
the hereditary office. Watan property had always
been treated as property belonging to the family and
all persons belonging to the watan family who had a
hereditary interest in such watan property and were
entitled to be called ‘watandars of the same watan’
within the meaning of Watan Act. That being so, the
members of a joint Hindu family must be regarded
as holders of the watan land along with the watandar
for the time being, and therefore the regrant of the
lands to the watandar under sub-Section (1) of
Section 4 of the Act 60 of 1950 and under Section 3
of Act 22 of 1955 must enure to the benefit of the
entire joint Hindu family.
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(x) The Hon'ble Supreme Court further noted that a

controversy had arisen as to the purport and effect
of the non obstante clause contained in Section 4 of
the Bombay Inferior Village Watans Abolition Act,
1958 and ultimately referred to LAKSHMIBAI
SADASHIV DATE v. GANESH SHANKAR
DATE [AIR 1977 Bom 350 (FB).] , (Lakshmi Bai
Sadashiv Date), wherein a Full Bench of the
Bombay High Court had upheld the view taken by
Malvankar I, in the case of Dhondi
VithobaKoli v. Mahadeo Dagdu, [AIR 1973 Bom 323]
(Dhondi Vithoba Koli), wherein it was observed that
the effect of non obstante clause in Section 4 was to
abolish alienation and rights and incidents in respect
thereof. The right of a member of joint Hindu family
to ask for partition of a joint family property cannot
be regarded as a right relating to grant of land as
service inam or as an incident in respect thereof.
The object of Section 4 was not to affect in any
manner rights created under the personal law
relating to the parties and if the property belonged to
joint Hindu family, then the normal rights of the
members of the family to ask for partition were not in
any way affected by reason of the non obstante
clause contained in Section 4.
(xi) The Hon'ble Supreme Court accepted the
interpretation given by the Bombay High Court on
the non obstante clause found in the
commencement of Section 4 of the said Act. After
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referring to sub-Section (2) of Section 4 of Act 60 of

1950 and sub-Section (3) of Section 7 of Act 22 of
1955, the Hon'ble Supreme Court observed that the
object of the said provisions was to impose
restrictions in the matter of alienations. On regrant of
the land, the holder is deemed to be an occupant
and therefore the holding changes its intrinsic
character and becomes ryotwari and is like any
other property which is capable of being transferred
or partitioned by metes and bounds subject, of
course, to the sanction of the Collector and on
payment of the requisite amount.
b) KALGONDA BABGONDA PATIL v. BALGONDA
KALGONDA PATIL [1989 Supp (1) SCC 246.] ,
(Kalgonda Babgonda Patil):
(i) In the aforesaid case, the Hon'ble Supreme
Court considered Bombay Inferior Village Watans
Abolition Act, (1958 Act 1 of 1959) in the aforesaid
case. That case questioned the judgment of the
Division Bench of Bombay High Court, which had
dismissed the suit for partition by holding that when
watan (inam) rights were abolished all rights
including the right of partition also stood abolished.
In that case, a contention was raised that despite
there being a partition of other properties of the joint
family, the watan lands continued to be the
hereditary property of the family although according
to the custom the watan was only in the name of the
senior member of the family as the succession
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according to the custom was in accordance with rule

of primogeniture. It was also held in the said case
that on the abolition of watans, the watan lands were
converted into ryotwari lands and therefore, they
become partible. The Hon'ble Supreme Court set
aside the judgment of Bombay High Court and held
that the watan lands were subject to partition and
that the said lands could be partitioned, after they
were converted into ryotwari lands.
c) In SHIVAPPA TAMMANNAPPA
KARABAN v. PARASAPPA HANAMMAPPA
KURABAN [1995 Supp (1) SCC 162.], (Shivappa
Tammannappa Karaban):
(i) The controversy in the aforesaid case was
under KVOA Act, 1961, wherein it was held that the
right given to the person in respect of regrant is only
a pre-existing right namely, the property attached to
the office and the same continues to be enjoyed and
belongs to the family and it is impartible by rule of
primogeniture. But on account of abolition of the
office and grant of ryotwari patta, the land becomes
partible subject to the conditions under Section 5(3).
In that case it was held that there is no exclusive
right to the property and there was no illegality in the
decree of partition granted by the Courts below.
b) ANNASAHEB BAPUSAHEB PATIL v. BALWANT
ALIAS BALASAHEB BABUSAHEB PATIL (DEAD)
BY [Link]. & HEIRS [(1995) 2 SCC 543.]
, (Annasaheb Bapusaheb Patil):
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(i) The aforesaid matter arose under the

Maharashtra Revenue Patels (Abolition of office)
Act, 1962, which came into force on 01.01.1963.
Discussing the scheme of the said Act, the question
considered was, whether, on regrant made under
Section 5(1) of the Act, the attached watan land was
characterized as self acquired property of watandar
or not. Reference was made to Nagesh Bisto
Desai (supra) and also to the effect of abolition and
extension and modification by operation of Section 3
of Act 22 of 1955 Act (supra) and to the other
decisions referred to above emanating from Bombay
High Court and it was held in paragraph No. 10 of
the judgment that by virtue of Section 3 of the said
Act of 1962, the watans were abolished and all the
incidents attached to the watandari including the
pre-existing custom, operation of law or any decree
of Court were nullified by statutory operation.
Thereby, incidents attached to the watan i.e., liability
to render service as Patel became extinct and the
lands became ryotwari lands, the office of watan
stood extinguished, the rule of primogeniture stood
abolished and the land on regrant became the Hindu
Joint Family property held by the watandar for and
on behalf of the members of the joint Hindu family.
All the members of the family became entitled to
claim right to partition by survivorship and that the
right to claim partition would accrue to all members
of the family after it is regranted. Of course, in that
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case, the Hon'ble Supreme Court considered the

question of adverse possession in light of Article 65
of the Schedule to the Limitation Act, 1963 and held
that where possession can be referred to a lawful
title, it will not be considered to be adverse and that
a person who enters into possession having a lawful
title, cannot divest another of that title by pretending
that he had no title at all.
e) ABUBAKAR ABDUL INAMDAR (DEAD) BY
LRS v. HARUN ABDUL INAMDAR [(1995) 5 SCC
612.] , (A bubakar Abdul Inamdar):
(i) The controversy in this case again arose under Act
22 of 1955, which was also considered in the case
of Nagesh Bisto Desai. In this case, the facts were
that on the death of the inamdar the agricultural
lands were assigned to his eldest son by certain
orders passed by the Ruler of Kolhapur. The said
inam lands were impartible and the lands devolved
upon the eldest son by the rule of primogeniture. On
the enforcement of the 1955 Act, the eldest son of
the inamdar, Abubakar was regranted the properties
as the watandar. His siblings laid a claim to the said
lands as co-heirs of Abubakar taking the plea that by
virtue of inheritance they had a share in the property
as the original inamdar, Syed Abdulla was the father
of Abubakar but the office had devolved on
Abubakar being the eldest son. It was contended
that the bar of impartibility and the rule of
primogeniture fell into insignificance on account of
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the 1955 Act. The suit had been decried even by the
High Court.
(ii) It was contended before the Hon'ble Supreme Court
that the parties in that case were Mohamaddens,
that the estate of Syed Abdulla, the original inamdar
should normally have devolved upon his children in
accordance with the shares as defined under the
Shariat law. But since the inam lands were
impartiable and the services to the Ruler were due
from the members of the family through the eldest
son by the rule of primogeniture, even then the
eldest son was the representative to hold the inam.
Once the inam was abolished and regrant was given
to Abubakar, the eldest son, the members of the
family had a share in the said land as per the law of
Shariat. While observing so, the Hon'ble Supreme
Court repelled the contention that the legal position
would alter if the inamdar was a Mohammedan and
the parties seeking succession were Mohammedans
and not belonging to a Hindu Joint Family. The
Hon'ble Supreme Court emphasized that when
Abubakar was confirmed with the inam, there was
no distinction created between the Inamdar being a
Muslim or a Hindu and that uniformity of tradition in
that regard was a good rule of reason and therefore
when the land was available for division by way of
inheritance, then even if one member of family was
conferred with the office of Inamdar, once it was
regranted to him, the members of the family could
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seek a share in the said estate on the premise that

the conferment of office to only one member of the
family was on the basis of right of primogeniture and
that the said office was held as a hereditary right.
f) B.L. SREEDHAR v. K.M. MUNIREDDY [(2003) 2
SCC 355.] ,
(B.L. Sreedhar):
(i) The matter arose under the KVOA Act, 1961. It has
been held by the Hon'ble Supreme Court that the
regrant of the resumed land in the said Act in favour
of one of the family members would enure to the
whole family but members relinquishing right byword
or conduct, in favour of other members, would be
bound by estoppel.
g) [Link] v. A. RAMAKRISHNAPPA [(2008) 9
SCC 607.] ,(K.V. Sudharshan):

(i) The controversy was considered under the provisions

of Mysore (Religious and Charitable) Inams Abolition
Act, 1955. In the said case, it was held that
respondent No. 1 therein was made Archaka after
the death of his father because he was the eldest
member of the family. Being the Archaka, he
cultivated lands and obtained occupancy rights. In
such circumstances, it would be highly unjust to
deprive the other members of the family from getting
their shares in the said land attached to the office of
Archaka and such lands are also available for
partition and if the occupancy rights were granted to
one of the members of the family, it would not
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disentitle the other members from claiming a right in

the said lands.
h) N. PADMAMMA v. S. RAMAKRISHNA
REDDY [(2015) 1 SCC 417.] , (N. Padmamma):
(i) The question considered was whether the Civil Court
had jurisdiction to entertain a suit for partition for
division of respective shares amongst the members
of a joint family, when in respect of some of the
lands, occupancy right had been granted in favour of
one of them in terms of the provisions of the Andhra
Pradesh (Telangana Area) Abolition of Inams Act,
1955. While considering the said question, in light of
the scheme of the said Act, the Hon'ble Supreme
Court held at para-10 that it is well settled principle
of law that possession of a co-heir is in law treated
as possession of all co-heirs. If one co-heir has
come inpossession of the properties, it is presumed
to be on the basis of a joint title. A co-heir cannot
come in possession adversely to other co-heirs not
in possession, merely by any secret hostile animus
on his own part and in derogation of the title of other
co-heirs. Ouster of the other co-heirs must be
evidenced by hostile title coupled by exclusive
possession and enjoyment of one ofthem to the
knowledge of the other. In that case reliance has
been placed on Kalgonda Babgonda Patil and the
decision in the case of Nagesh Bisto Desai. The
Hon'ble Supreme Court concluded that the grant
made in favour of one of the persons of the joint
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family would enure to the other members as the

grant is for the benefit of all. That is because the
grant made in the name of the watandar did not
mean that the property ceased to be joint family
property.
39. Learned Counsel for the appellant has also relied
upon the following decisions of this Court:
a) MOHAMADSA v. ALLISA [(1988) 2 Kant LJ 89.] ,
(Mohamadsa):
(i) A Division Bench of this Court considered the
controversy under the provisions of the KVOA Act,
1961 in an appeal that arose from the judgment and
decree passed in a suit by the Trial Court. The said
suit was filed seeking a decree for partition and
separate possession of the lands in question. The
facts could be noted in detail as the said case also
concerned with the office of walikar of the village as
in the instant case. The lands were enjoyed by the
propositus Maktumsa. He had three sons by name,
Madansa, Allisa and Mashaksa @ Mashanna.
Madansa had three sons by name Mohammadsa,
Hanilsa and Kasimsa. The two other sons of
Maktumsa i.e., Allisa and Mashaksa @ Mashanna
were the plaintiffs in the suit and the three sons of
Madansa were the defendants in the suit. The suit
seeking partition and separate possession was
resisted by the defendants.
(ii) The Division Bench considered the consequences of
abolition of village office and regrant of the lands
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assigned to the village office by placing reliance on

another decision of the division bench of this Court
in the case SHIVAPPA FAKIRAPPA
SHETSANADI v. KANNAPPA MALLAPPA
SHETSANADI [ILR 1987 Kar 3155.] ,” (Shivappa
Fakirappa), wherein reference was made to two
decisions of the Bombay High Court referred to
above namely, Laxmi Bai v. Ganesh, and Nagesh
Bisto Desai v. Khando Thirmal, and held that under
the Act on the abolition of the village offices, regrant
of the land is made to the person who was the
holder of the village office immediately prior to date
of appointment on payment by or on behalf of such
holder to the State Government the occupancy
price. The Division Bench quoted from the aforesaid
judgments to hold that village office and the suit land
annexed to it had been continued to be joint family
property till the date on which the village office was
abolished and the land was annexed to it was
resumed. Further, an ‘interest’ in the village office
means that the member of the joint family even
though he may belong to a junior branch, had a right
to succeed to the office in the event none was
available in the senior branch to succeed to the
office. Therefore, in the said case it was held that
the inferior village office which was granted to the
great grand father of the parties and the suit land
which was annexed to the said office, on abolition of
the village office and resumption of the suit land as a
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consequence of abolition of the village office,

became available for regrant and the person
officiating the said office became entitled to have the
land regranted. Further, the Division Bench also
cited that the definition of ‘holder’ means a person
having an interest in the said office under an existing
law relating to such office and the expression
‘existing law relating to a village office’ includes any
enactment, ordinance, rule, bye-law, regulation,
order, notification, firman, hukum, vat hukum, or any
instrument or any custom or usage having the force
of law relating to a village office which may be in
force immediately before the appointed date.
Therefore, the junior members of the family having
an interest under the village office must be
considered as holders of the village office and a
regrant made in favour of a person does not take
away the right of the other persons or junior
members of the family to seek partition in the suit
land as per their personal law.
(iii) Dwelling on the facts of the case, the Division Bench
noted that the plaintiffs as well as the defendants in
the said suit being the descendants of the common
propositus, Maktumsa to whom the village office was
granted, also fell within the definition of ‘holders of a
village office’ and that the plaintiffs therein had an
interest in the village office under the existing law
relating to village office because in the absence of
heirs from the elder branch, the plaintiffs were
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entitled to officiate as Shetsanadis and that a regrant

did not take away the right of a junior member of the
family who had an interest in the village office to
seek partition and possession of his share in the suit
lands according to his personal law, even though the
regrant was made in the name of the holder of the
village office immediately prior to the date of regrant.
(iv) The Division Bench also placed reliance on Section
90 of the Indian Trust Act, illustration (b), wherein,
the person would hold the lands for the benefit of
himself and other members of the undivided family
and that the principle applies to a Mohammaden
family as well holding Shetsanadi lands immediately
on the appointed date by relying on a judgment of a
Learned Single Judge of this Court in the case
of Aminsaheb Dastagirsaheb Mulla v. Hussainsaheb
Rasulsaheb Mulla in RSA No. 281/1972 dated
22.06.1976. Accordingly, it was held that on the
regrant of the lands in favour of the first defendant
therein, the plaintiffs and defendants became the co-
owners as each one of them became entitled to a
share in the suit lands and the decree granted by the
Trial Court was afirmed.
b) BEERAPPA v. FAKIRAPPA BEERAPPA
BANDROLLI [ILR 2006 Kar 4170.] , (Beerappa):
(i) This is again a judgment of the Division Bench of this
Court, reliance has been again placed on the
decision of the Shivappa Fakirappa as well as the
decisions of the Hon'ble Supreme Court referred to
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above to hold that a ‘holder’ of village office means a

person having interest in the village office under the
existing law relating to the said office. An interest in
the village office means and includes the right to
survivorship of the members of the joint family. The
right to succession by survivorship is a right accrued
to the members of the joint family in respect of joint
family property and therefore junior members of the
family have the interest in the village office and they
have to be considered as the holders of village
office. Reiterating that lands attached to the village
office is not available for partition till it becomes
ryotwari land i.e., when it is regranted subsequent to
resumption made by the State, the Division Bench
held that succession to such land would be on the
basis of the rules regarding succession as
applicable to the parties in terms of their personal
law. Further, any person holding village office will
hold the said office on his behalf and also on behalf
of other members of the joint family. By placing
reliance on the decision in the case of ANNASAHEB
BAPUSAHEB PATIL, the Division Bench held, even
on the abolition of watans, all the incidents attached
to the watandari namely, the obligation to render
service becomes extinct and the land becomes
ryotwari land on regrant and the office of watans
become extinguished. The applicability of lineal
primogeniture also would stand abolished, all
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members of the family would be entitled to claim

right to partition by survivorship.
40. In contrast to the aforesaid judgments, Learned
Counsel for the respondents cited three judgments
namely, VENKAT v. RAMA [ILR (1885) 8 Mad 250.]
, MUSTI VENKATA JAGANNADHA v. MUSTI
VEERABHADRAYYA [AIR 1922 PC 96] , and GAZULA
DASARATHA RAMA RAO v. STATE OF ANDHRA
PRADESH [ILR 1961 SC 564.] , to contend that the office
of the walikar, which is under consideration in this appeal is
akin to the office of kamam under the Madras Hereditary
Village Offices Act, 1895 and is an office under the State
within the meaning of Article 16 (1) & (2) ofthe Constitution
of India. That the said office cannot be construed to be a
hereditary village office after the promulgation of the
Constitution and that the conferment of the said office
subsequent to the enforcement of the Constitution is not on
the basis of heredity, but it would depend purely on the
merit of the candidate who applies for such an office.
But while considering the said proposition, the facts in
each case is considered in seriatim as under:
a) In VENKAT v. RAMA, the facts were that the lands
forming an emolument of a hereditary village office
having been separated from the office by the
Government, were enfranchised and granted by the
Inam Commissioner to Venkat, who had been
appointed to, and, at the date of enfranchisement held,
the office without possessing any hereditary claim
thereto. But there is no material evidence produced by
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the respondents in the instant case as to the nature of

the confennent of office on Nabisab or as to whether it
was on the basis of his individual merit.
b) In the second of the aforesaid cases, the controversy
was again regarding the office of karnam and it was
held that enfranchisement in the name of a particular
person insofar as right in the office of the kamam was
concerned, must be given full effect and that the family
members of the person who was conferred with the said
office could not seek partition. Once again the said
decision turns on its own facts, as the conferment of the
office of the kamam, though a village office, was not on
the basis of heredity, but on the basis of qualification of
the person to hold the said office.
c) In GAZULA DASHARATHA RAMA RAO's case, the third
decision cited by Learned Counsel for the respondents,
it has been held that the office of village Munsiff under
the Madras Hereditary Village Offices Act, 1895 is an
‘office under the State’ as the appointment was made
by the Collector, the emoluments were granted or
continued by the State and the Collector had
disciplinary powers including the power to remove,
suspend or dismiss him and the qualifications for
appointment were laid down by the Board of Revenue.
Therefore, the office was a public office.
All the aforesaid three decisions are pertaining to
what was once a hereditary office in the erstwhile
Madras State, subsequently the said office being
conferred on a particular person was based on his own
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merit and not on the basis of heredity based on the

principle of primogeniture. The said line of decisions
cannot be applied to the office of walikar as in the
instant case as the same has to be considered in light
of Act of 1874 and hence, those decisions cannot be
applied in a stereo type fashion or straight jacket
manner in the instant case.
d) G.L. HANUMANTHA RAO v. STATE OF
MYSORE [(1964) 1 Mys LJ 50.] , is also a judgment of
the Division Bench of this Court, relied upon by Learned
Counsel for the respondents. In the said case, the
constitutional validity of the Mysore Village Offices
Abolition Act, 1961 raised by persons holding the post
of Shanbhogs, Patels, Kamams and other village offices
or inferior village offices in light of Article 19 (1) (f) of the
Constitution was considered. The Division Bench held
that abolished village offices are not property and no
fundamental right to hold them could be claimed under
Article 19 (1) (f) of the Constitution (as it then stood)
and that no fundamental right granted under Article 13
(1) of the Constitution was invaded.
e) Reliance has also been placed on another Division
Bench decision of this Court in the case
of MALLESHAPPA YESHVANTAHAPPA
PATIL v. KALLAPPA VITHOBA PATIL [(1970) 2 Mys LJ
350.] , wherein question arose as to whether an.
individual is exclusively the holder of the village office,
or whether the entire joint family of which he is a
member, is the holder of the village office, as such a
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question falls within Section 3(1) (b) of the KVOA Act,

1961. The Division Bench held that while considering
the question as to in whose favour land should be
regranted under Section 5 of the said Act, if a question
arises as to which of such applicants is or are holder or
holders of the village office, it cannot be said that such a
question does not fall within Section 3(1) (b), merely
because those applicants had not made an application
or applications in the manner provided in Rule 3 but had
made the applications under Rule 5 of the rules made
under KVOA Act, 1961. Rule 3 made under the said Act
prescribes the manner of holding an enquiry under
Section 3. Sub-Rule (1) of Rule 3 provides that any
person interested in the village office or in any land
granted or continued in respect of or annexed to, such
an office and desiring a decision on any question
referred to in Section 3, may make an application to the
Deputy Commissioner. Whereas sub-Rule (1) of Rule 5
provides, inter alia, that a person entitled to the regrant
of a land, shall make an application to the Deputy
Commissioner for such regrant within three months
from the date of payment of full occupancy price. The
functioning of the Deputy Commissioner in this regard
has been delegated to the Assistant Commissioners in-
charge of Revenue Sub-Divisions and in respect of the
areas within their respective jurisdiction and
subsequently there has been a further delegation to the
Tahasildar.
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The Division Bench further held that Section 2(1) of

the Act which contains the definition of ‘holder of a
village office’, which term includes not only an individual
but also the whole body of persons having interest in a
village office where such village has been entered in a
register or record relating to such village office is being
held by such body. The word ‘person’ in Clause (b) of
Section 3(1) includes persons.
f) G.K. BASAPPA v. TAHSILDAR, SHIMOGA [(1991) 3
Karl LJ 401.] , (G.K. Basappa):
This is also a case, which arose under the very
same subject. In this case also there were rival
applications filed by the members of the same family. A
dispute arose as to which of the parties had to be
regranted the land attached to the village office and it is
observed that when rival claims are made before the
Tahasildar for regrant of the land and when such of
claimants are unsuccessful in their attempt they cannot
turn round and say they would be entitled to the benefit
that may accrue in favour of holders of the village office.
g) YAMANAVVA v. CHANDRAWWA [(2007) 1 Kant LJ
626.] , (Yamanavva):
In this case, it has been held that where land is
granted exclusively in favour of a party, it would not be
entitled for the benefit of the family, particularly when
there was severance of status of joint family. In that
case also the dispute was with regard to walikari land
and the question was whether the family continued to
remain joint. There was a concurrent finding of the
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Courts below that there was partition of properties

between the family members and thereafter the grant
was made in favour of one of the members of the
family. In that context, it was held that the grant was
exclusively in favour of the defendant in the said case
and it would not enure to the benefit of the plaintiff as
the family no longer remained joint pursuant to a
partition in the family.
h) In the aforesaid case, reference has been made to the
decision of this Court, in the case
of APPANNA v. LAKKAPPA DEVAPPA [(1983) 1 Kant
LJ 482.] , (Appanna and others), which also pertains to
walikari watans, wherein it has been held that in the
case of walikarki properties, where a regrant is made in
the name of one of the members of the family, who was
performing the walikarki services, the grant enures to
the benefit of all the holders of that office in the family
and the members of the family have a right to claim
partition in the said regranted land. It was further held
that after the village office was abolished and the watan
lands were resumed on the appointed date i.e.,
01.02.1963 and thereafter the cause of action for
partition would arise only in 1963 (or on a subsequent
date when the land is regranted). Reliance has been
placed on the full bench decision of the Bombay High
Court in LAKSHMI BAI SADASHIV DATE v. GANESH
SHANKAR DATE, (supra) (Laxmi Bai Sadashiv Date) in
coming to such conclusion. It is further observed that
when lands are regranted, the same would enure to the
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benefit of the entire family, provided there would be no

partition between the members of the family as on the
date of the regrant.
In LAKSHMI BAI SADASHIV DATE, while
considering the provisions of the Act, the Bombay High
Court held that the provisions of the said Act does not
affect the normal rights of a member of a Hindu family
under the personal law applicable to Hindus. Thus,
where the service inam was a grant to the joint Hindu
family in the name of the senior member and the same
was abolished it could not be contended that the right
ofthe other members of the family relating to partition of
joint family property was extinguished nor could it be
contended that when the regrant was made under
Section 7 in the name of the grantee, the other
members had no right to ask for a share therein by way
of partition.
41. Learned Counsel for the respondents has placed
reliance on two other decisions with regard to binding effect
of a finding of fact given in proceedings under particular
statutes in a civil dispute.
a) MUDAKAPPA v. RUDRAPPA [(1994) 2 SCC 57 : AIR
1994 SC 1190.] , has been pressed into service to
contend that under the provisions of Karnataka Land
Reforms Act, if a question would arise as to whether the
joint family or one of its members is a tenant, the
Tribunal would have jurisdiction to decide such question
under Section 48 A read with Section 133 and not the
Civil Court and when the Tribunal is invested with the
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power and jurisdiction to adjudicate rival claim, the

correctness of its order could be tested either in an
appeal or by judicial review under Article 226 or Article
227 of the Constitution, as the case may be, but the
finding given with regard to rival claims on tenancy
rights cannot be subject to a jurisdiction once again
before the Civil Court.
The Civil Court will have power only to decide other
issues. Learned Counsel for the respondents by
drawing an analogy from the aforesaid decision
contended that in the instant case also rival applications
were filed for conferment of office of the Walikar both by
Nabisa as well as Imamsa and by Order dated
24/06/1954 the concerned authority conferred the office
of walikar on Nabisa and challenge made to the said
order before the Pranth Officer was also unsuccessful
as the appeal was dismissed on 30/11/1954.
Thereafter, there has been no further challenge to that
order. The said conferment of office on Nabisa was in
his individual capacity and not on the family of
Chandsa. Consequently, the holder of the office
namely, Nabisa was rightly regranted the land under the
provisions of the KVOA Act, 1961 on the resumption
ofsuch land on 01/02/1963 (appointed date) and hence
the findings arrived at while regranting the land to
Nabisa (which were also challenged by the appellants
herein before the District Court in Misc. Case No.
5/1984 which appeal has also been dismissed as per
Ex.P-1) would clearly imply that the questions which
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have gone into by those statutory authorities cannot be

re-agitated in the present suit.
b) In this regard, reliance has also been placed
on ANJANAPPA v. BYRAP PA (SINCE DECEASED)
BYLRS. [(1995) 5 Kant LJ 459.] , to contend that even
under the provisions of the Mysore (Personal and
Miscellaneous) Inams Abolition Act, 1954 where a grant
of occupancy right is made to the tenants of inam lands,
the exclusive jurisdiction is conferred on Special Deputy
Commissioner to do so and the jurisdiction of the Civil
Court is ousted and when once the order of the Deputy
Commissioner attains finality, the same cannot be
challenged in collateral proceedings like in a suit for
partition and possession of property.
c) At this stage it would be useful to also make a reference
to two other judgments of this Court, one of which
is SYEDBASHEER AHAMED v. STATE OF
KARNATAKA [ILR 1994 Kar 159.] , and the other
is LAXMAN GOWDA v. STATE OF KARNATAKA [ILR
(1980) 2 Kar 892.] , (Laxman Gowda). Of course, the
said decision pertains to the prohibition of alienation of
service inam lands and the legality of the alienation
made after enforcement of the KVOAAct, 1961 and, as
to, whether, an alienee can derive any right or interest
in such land. It was held that the holder or the
authorized holder of the service inam land do not get
any title to it when that land stood resumed to the
Government under sub-Section (3) of Section 4, but he
gets title to it when it is regranted to him under Section
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5 or 6, as the case may be. If there had been no

alienation before the Act coming into force and before it
was regranted, then the alienee acquires title to that
land after such regrant is made to alienor.
d) While holding so, the Division Bench has traced the
history of the village office in different areas of
Karnataka State which were generally held hereditarily.
Reference has also been made to the Bombay
Hereditary Offices Act, 1874 in erstwhile Bombay State.
That the emoluments of these village offices are
generally in the form of lands and the alienation of such
lands by the holders thereof was generally prohibited.
According to the Division Bench, the policy of the State
in restraining alienation of service inam lands was to
render permanent source of income to a hereditary
village office's family, apart from any cash emoluments.
Reference has also been made to the definition of
watan properties under Section 4 of the Bombay
Hereditary Village Office Act, 1874.
e) In GAZULA DASHARATHA RAMA RAO v. STATE OF
ANDHRA PRADESH, the Hon'ble Supreme Court held
that the continuance of hereditary village offices was
unconstitutional. In light of that decision, State
Government enacted the KVOA Act, 1961 by which all
hereditary village offices in the State were abolished.
The constitutional validity of the said Act was
challenged in G.L. HANUMANTHARAO v. STATE OF
MYSORE, and it was upheld and the Hon'ble Supreme
Court also upheld the constitutionality of the Act
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in SHANKAR NARAYAN v. STATE OF MYSORE [AIR

1966 SC 1571.] ,. It is not necessary to refer to the
details of the conclusions arrived at in the said
decisions as the same pertain to the right, title and
interest of an alienee of service inam land under the
provisions of the act which does not arise in the instant
case.
f) Thereafter, there were contrary opinions expressed by
two division benches of this Court in the case
of HANUMAIAH v. STATE OF KARNATAKA [ILR 1987 Kar
550.] , and CHIKKANARASAIAH v. TIRUPATAIAH [ILR 1989
Kar 1020.] , and hence the matter was referred to a Full
Bench which has given its opinion in the case of SYED
BHASHEER AHAMED v. STATE OF KARNATAKA,
(supra), which is an opinion of the Full Bench. The said
decision is also with regard to the alienation made in
respect of service inam land either prior to 01/02/1963
or subsequent to 01/02/1963 upto 07/08/1978 when the
principal Act was enacted and alienation made after
07/08/1978. It would not be necessary to go into the
conclusions arrived at in that case as they are not
relevant for the purpose of determining the controversy
in the present case.
42. In Laxman Gowda, the Division Bench of this Court
has adverted to Bombay Act No. III of 1874 which is now
called the Maharashtra Hereditary Offices Act, 1894 (1874
Act). It would be useful to briefly summarize the scheme of
the said Act at this stage.
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a) In Section 4 of the Act ‘watan property’ is defined to

mean moveable or immovable property held, acquired,
or assigned for providing remuneration for the
performance of the duty appertaining to a hereditary
office. It includes a right to levy customary fees or
perquisites, in money or in kind, whether at fixed times
or otherwise. It includes cash payments in addition to
the original watan property made voluntarily by the
State Government and subject periodically to
modification or withdrawal. The emphasis in the
definition is on the hereditary office. The expression
‘hereditary office’ is defined to mean every office held
hereditarily for the performance of duties connected
with the administration of collection of the public
revenue or with the village police, or with the settlement
of boundaries, or other matters of civil administration.
The expression includes such office even where the
services originally appertaining to it have ceased to
remain. The watan property, if any, and the hereditary
office and the rights and privileges attached to them
together constitute the watan.
b) The definition of ‘watandar’ is also stated to mean ‘a
person having a hereditary interest in a watan. It
includes a person holding watan property acquired by
him either before the introduction of the British
Government into the locality of the watan or, legally
acquired, subsequent to such introduction and, also
includes a person holding such property from him by
inheritance. It also includes the person adopted by an
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owner of a watan or part of a watan, subject to certain

conditions specified in the Act. ‘Family’ is defined to
include each of the branches of the family descended
from an original watandar and the head of a family
includes the chief representative of each branch of a
family. ‘Representative watandar’ means a watandar
registered by the Collector under Section 25 as having
a right to perform the duties of a hereditary office.
‘Officiator’ means the person actually performing the
duties of a hereditary office for the time being, whether
he be a representative watandar or a deputy or a
substitute appointed under any of the provisions of the
said Act. The Act prohibits alienation of watan and
watan rights. Part-III of the said act deals with
commutation of watans.
c) Learned Counsel for the respective parties have both
contended that Bombay Act No. III of 1874 called the
Bombay Hereditary Offices Act now re-named as the
Maharashtra Hereditary Offices Act, apply to the village
offices in question. That subsequent to the re-
organisation of Karnataka State in the year 1956 and
merger of the areas in which the land in question is
situated in Karnataka State, the KVOAAct, 1961 would
apply to the land in question also. Thus, the 1874 Act or
Watan Act is an Act which applies to hereditary offices,
but parts VI, VII, VIII and IX of the said Act does not
apply to hereditary offices of lower degree than Patel
and Kulkami, nor to watans appertaining to such offices.
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d) Learned Counsel for the respective parties also submit

that the office of walikar is a hereditary village office of a
lower degree under Section 63. In part-X of the said Act
the Collector is empowered, subject to the general
control of the State Government, to register the names
of individual watandars as holders of the office or to
register it as held by the whole body of watandars. He
has to also determine when individual names are so
registered, the rights, duties and responsibilities among
themselves or the persons so registered, and the mode
in which they shall be selected to perform the duties,
whether by selection by the Collector or by defined
rotation, or by election by the watandars or otherwise,
as may be expedient. That in cases where the
registration is made in the name of the whole body of
watandars, the duties to be performed have to be
assigned by the Collector either severally or jointly. The
Mamlatdar or Mahalkari (Tahsildar) are empowered to
pass orders in regard to the appointment, remuneration,
period of service, suspension etc. and other matters of
discipline in the case of an inferior village hereditary
office.
e) The Maharashtra Revenue Jurisdiction Act, 1876 (Act
No. X of 1876) bars the jurisdiction of the Civil Court
with regard to claims against the Government, with
regard to any property pertaining to the office of any
hereditary officers appointed or recognized under the
1874 Act or any other law for the time being in force or
of any other village officer or servant or any suit to set
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aside or avoid any order made under Bombay Act No.

III of 1874.
43. The KVOA Act, 1961 was enacted to abolish village
offices in the State of Karnataka which was held
hereditarily before the commencement of the Constitution
and the emoluments appertaining thereto in the State of
Karnataka and to provide for matters consequential and
incidental thereto. Under the said Act, the appointed date is
01/02/1963 under Section 2 (1) (a) of the Act. Under
Section 2 (1) (b) ‘authorized holder’ has been defined to
mean a person in whose favour a land granted or
continued in respect of or annexed to, a village office by the
State or a part thereof has been validly alienated
permanently, whether by way of sale, gift, partition or
otherwise, under the existing law relating to the such village
offices. The definition of emoluments would include lands.
Section 2(1) (g) defines ‘holder of a village office’ or ‘holder’
to mean a person having an interest in a village office
under an existing law relating to such office. The proviso
states that where any village office has been entered in a
register or record under the existing law relating to such
village office, as held by the whole body of persons having
interest in the village office, the whole of such body shall be
deemed to be the holder.
‘Inferior village officer’ is defined to mean ‘every village
office of lower degree than that of a Patel or Village
Accountant’. ‘Officiator’ means the person actually
performing the duties of a village office, whether he be a
person having a right to perform the duties of such office or
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a substitute appointed under the existing law relating to

such office. ‘Unauthorized holder’ is defined under Section
2(1)(m) and ‘village office’ is defined under Section 2(1)(n),
which essentially is held hereditarily.
As it is noted from the decision of the Division Bench
in Laxman Gowda's case that the village office coming
under the provisions of Act No. III of 1874 including that of
walikar, which is an inferior village office, subsequent to the
enforcement of the KVOA Act, 1961 has to be dealt with
under the provisions of the said Act. Section 3 deals with
the powers of the Deputy Commissioner to decide certain
questions such as, whether any person is a holder of a
village office. The Deputy Commissioner will have to hold
an enquiry in the prescribed manner and decide the
question. Of course, the jurisdiction of the Deputy
Commissioner is now conferred on the Tahsildar. Any
person aggrieved by the jurisdiction of the Tahsildar could
appeal to the District Judge of that District within whose
jurisdiction the lands are situate. Section 4 deals with the
abolition of village office together with incidents thereof
including resumption of all land annexed to a village office
by the State. Under Section 5, the resumed land could be
re-granted to the holder of the village office immediately
prior to the appointed date. On re-grant of the said land, a
ryotwari patta shall be issued and the land gets converted
from an impartible estate to ryotwari land, subject to certain
conditions regarding alienation. However, partition not
being transfer is permissible after the land is regranted.
Section 6 deals with regrant of land resumed under Section
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4 to authorized holder who is an alienee of the said land.

Section 7 deals with eviction of unauthorized holders,
which is not relevant for the present case. The rules made
under the said Act have been referred to above while
referring to the decision of the Division Bench of this Court
in the case of MALLESHAPPA YESHWANTAPPA
PATIL v. KALLAPPA VITHOBA PATIL, (supra).
While answering point No. 1, it would be useful to revisit
two aspects. Firstly, as to whether the appointment of
Nabisa as walikar was exclusive, based on his own merit
and qualification and in his individual capacity and that his
appointment to said office did not enure to the benefit of
other members of the family. Secondly, as to whether the
order or regrant of the suit lands made in the name of
Nabisa was on the basis that, Nabisa only had the right to
enjoy the said lands on its regrant and it did not enure to
the benefit of all other members of the family of Chandsa.
That on the demise of Nabisa, his legal heirs only were
entitled to share the said lands and not the branch of
plaintiffs’ family.
44. On a consideration of the judgments of the Hon'ble
Supreme Court as well as this Court, what emerges is that
the grant of watan to the eldest member of a family would
not make him the exclusive owner of the watan properties.
That any member of the family of watandar who has a
hereditary interest, both in watan property and in the
hereditary office, (as these two concomitants that constitute
the watan in terms of Section 4 of the Watan Act) would be
entitled to hold the said office. But in practice, the office of
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walikar as watandar, was conferred only on the eldest

member of the family on the basis of custom by applying
the rule of primogeniture applicable to such office. That the
Watan Act has been enacted to preserve the pre-existing
rights of the members of a joint Hindu family. The word
‘family’ is defined in Section 4 of the Watan Act to include
“each of the branches of the family descended from an
original watandar and the expression “head of the family” is
defined to include the chief representative of each branch
of a family Although Section 3 of the said Act has brought
about a change in the tenure or character of holding as
watan land, but that did not affect the other legal incidents
of the property under personal law. Further, the Hon'ble
Supreme Court has held that the expression “watandar”
cannot be limited to the narrow class ofpersons who have
claimed the hereditary interest both in the watan property
or in the hereditary office. Watan property has always been
treated as property belonging to the family and all persons
belonging to the watan family who had a hereditary interest
in such watan property and were entitled to be watandars
ofthe same watan within the meaning of Watan Act were
entitled to a share in such property once it ceased to be
impartible. It has also been held by the Hon'ble Supreme
Court that the watan lands continued to be hereditary
property of the family although according to the custom, the
watan was only in the name of senior member ofthe family
as the succession according to custom was in accordance
with the rule of primogeniture. This Court has further held
that an interest in the village office means, that the member
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of the joint family even though belonged to the junior

branch in the family had a right to succeed to the office in
the event none was available in the senior branch to
succeed to the office. Thus, the holder of the village office
under KVOA Act, 1961 would mean, a person having an
interest in the village office under the existing law relating
to the said office, would also include junior members of the
family who had interest in the village office and not
restricted to only those appointed to the said office.
45. On a consideration of the judicial dicta in light of the
evidence on record, it is noted that the suit schedule lands
being attached to the office of walikar devolved on Nabisa
on the basis of heredity on the principle of primogeniture
and not in his individual capacity or on the basis of his
individual merit. But that did not exclude the other members
of the family of Chandsa from enjoying the suit lands with
Nabisa. No material has been produced by the defendants
to evidence the fact that the conferment of the office on
Nabisa was on the basis of the individual merit and on a
comparison of his individual merit with the other persons of
the family who were also entitled to hold the said office and
to the exclusion of the other junior members of his family.
In the absence of any material to the effect that on
02/12/1953 on the demise of Chandsa, the appointment of
Nabisa to the office of walikar was on the basis of his
individual merit only, it is held that the said appointment
was based on the principle of rule of primogeniture and on
the basis ofheredity, which is as per the evidence on
record. Nabisa being the eldest son of Chandsa through
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Anasarama, first wife of Chandsa, he was conferred the

office of walikar so as to render service of the village office
after the demise of Chandsa who was the walikar till his
demise. It is needless to emphasise that the said village
office was a hereditary office unlike that ofkamam, as it
obtained in erstwhile Madras Province. Therefore, it is held
that the conferment of office on Nabisa was on the basis
that he was the eldest son of Chandsa who was holding the
office-till his demise on the basis of heredity and rule of
primogeniture. By that, it cannot be held that the other
members of Chandsa's family had no interest in the said
office. This finding is also supported by what is stated in
Ex.P-1 produced by the plaintiffs, which document is also
relied upon by defendants.
Ex.P-1 is the judgment passed in Miscellaneous Appeal
No. 5/1984, dated 04/07/1988. On a reading of the said
judgment, it becomes clear that Imamsa was the walikar or
sanadi of Bidarkundi Village. The sanad of walikar lands,
after the death of Imamsa, devolved on Chandsa his son,
who worked as waliker till 1953. He died in the said year.
Nabisa made an application to the Tahsildar “for appointing
him as walikar of the village and also to mutate two lands in
his name on the ground that he was the eldest son of
Chandsa”. The said application was granted. Imamsa,
Nabisa's younger step brother filed an appeal before the
Prant Officer, Bagalkot Sub-Division, but the same was
dismissed and Nabisa's appointment was confirmed.
Thereafter, Nabisa was working as walikar of the village till
the abolition of village offices with effect from 01/02/1963
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on coming into force of KVOA Act, 1961. After vesting of

lands, Nabisa filed an application on 29/09/1967 for regrant
of the lands. On 07/10/1969, Imamsa also filed an
application to the Tahsildar claiming that the suit lands
were the family lands ofNabisa, himself and his younger
brother Rajesa and the lands had stood in the name of their
father and as they could not be partitioned, they were
enjoyed by all the three brothers jointly. The Tahsildar, after
enquiry, submitted the papers to the Assistant
Commissioner who, after hearing the parties regranted the
lands in the joint names of all the three brothers under
Section 5(3) of KVOA Act, 1961. There were several
rounds of litigation even before this Court and ultimately on
remand of the matter, the Tahsildar, Muddebihal, after
completing an enquiry and hearing the parties passed an
Order dated 24/06/1984, holding that Nabisa being the
officiating walikar was alone the holder of village office as
contemplated under Section 5 of the Act. He passed the
order regranting both the lands in favour of the respondents
herein who are the legal heirs of deceased Nabisa. That
order was challenged before the Learned District Judge,
Bijapur, in Miscellaneous Appeal No. 5/1984. At paragraph
Nos. 12, 13, 14 and 15 ofthe judgment (Ex.P-1), while
considering the rival contentions, no doubt the Learned
District Judge has held that the office of walikari was
conferred on Nabisa in his individual capacity and
thereafter, Nabisa alone was entitled for regrant of the land
and the order of regrant was made in favour of his legal
representatives on his death by the Tahsildar, Muddebihal,
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in accordance with law. Despite the said finding in Ex.P-1,

Learned District Judge has opined as under:
“it is made clear that if the appellants have got right to
get share by way of partition of the land, they are at liberty
to resort to legal remedy available to them under law.”
It is on the basis of the aforesaid liberty, the appellants
filed the suit, out of which this appeal arises. Therefore,
Ex.P-1 order has taken note of the fact that, the regrant of
land to the holder of the office to a particular person in the
family would not take away the right of the other members
of the family to seek partition and separate possession.
Therefore, the order of regrant of the lands in the name of
Nabisa does not exclude the right of the plaintiffs, who also
belong to the family of Chand Sa, the erstwhile holder of
the village office to seek partition and separate possession
of the suit lands, as they were attached to the erstwhile
village office. This is because the plaintiffs also had an
interest in that office, but only Nabisa being the eldest son
of the family of Chandsa was appointed to the said office.
Thus, the lands attached to the village office were mutated
in the name of Nabisa as he was the eldest son of
Chandsa and conferred the office on the basis of rule of
primogeniture.
46. On a survey of the decisions of the Hon'ble
Supreme Court and this Court, it is clear that the lands
attached to the village office were impartible and they
become partible only after they were converted into
ryotwari lands. But one cannot lose sight ofthe fact that the
lands in question are watan lands and Nabisa, lmamsa and
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Rajesa had an interest in the said lands as they were

watan lands and it was only on the basis of the rule of
primogeniture that Nabisa being the eldest son, was
conferred the office of walikar. In fact, Nabisa's application
made in the year 1953 was also on the basis of being the
eldest son of Chandsa. When lmamsa also sought for
appointed as a walikar, the same was negatived as
lmamsa was not the eldest son of Chandsa, who was
holding the office of walikar till his demise, and not because
he did not have any merit to hold the said office. Therefore,
the contention of the Learned Counsel for the respondents
that the office of walikar was conferred on Nabisa on
account of him being more meritorious as compared to
lmamsa cannot be accepted particularly, when no material
has been produced by the respondents in that regard.
47. The second aspect of point No. 1 is, whether the
regrant of the suit lands made in the name of Nabisa on the
enforcement of KVOA Act, 1961 was on him individually or
the other members of the family also had the benefit of said
regrant. The answer firstly is that regrant of the lands in the
name of Nabisa only was not on the basis that only he was
entitled to appropriate the said land and enjoy the same to
the exclusion of the other members of his family i.e., the
other heirs of Chandsa, who was holding the office of
walikar till his demise in the year 1953 as only he was
conferred with the village office. But Nabisa being the heir
of Chandsa who was conferred the office of walikar on the
basis of rule of primogeniture, it was regranted only in his
name. However, that would not imply that the other heirs of
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Chandsa became disentitled to enjoy the suit lands jointly

along with Nabisa, which they did so as heirs of Chandsa
only because Nabisa was regranted the lands under KVOA
Act, 1961.”

6.11 In the instant case, as stated earlier, there is no plea

put forth by defendant Nos. 1 to 3 that there was a partition in the

joint family before the 1st defendant applied for and was

conferred/granted occupancy rights; similarly, there is absolutely no

material placed by them to establish that the occupancy rights were

granted in favour of 1st defendant in his individual capacity and not

on behalf of the entire joint family including the plaintiffs and

defendants 6 to 8.

6.12 Under these circumstances, in the light of the

principles enunciated by the Apex court and this Court consistently

to the effect that any grant / re-grant of tenancy / occupancy rights

would enure to the benefit of all joint family members / entire joint

family coupled with the undisputed fact that there is no defence /

pleading / written statement put forth by defendant Nos.1 to 3, I am

of the view that occupancy rights granted in respect of Item Nos.3

to 6 in the name of 1st defendant would enure to the benefit of all

joint family members including plaintiffs and defendants 6 to 8 who

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would accordingly be entitled to their legitimate share in these

properties.

6.13 As noticed earlier, the instant suit was filed in the year

1999 and during its pendency, defendants 1 to 3 have affected

several alienations by executing sale deeds, gift deeds etc., in

favour of third parties including defendants 4 and 5 in relation to

portions of Item Nos. 3 to 6 of the suit schedule properties. As

stated hereinbefore, the material on record clearly establishes that

Item Nos. 3 to 6 are also joint family properties and that the

plaintiffs are entitled to their legitimate share in these properties;

having regard to the fact that all the alienations including sale

deeds, gift deeds etc., by defendant Nos.1 to 3 in favour of third

parties including defendants 4 and 5 were made during the

pendency of the suit, the same would be hit by the doctrine of lis

pendens and would neither bind nor affect the plaintiffs’ legitimate

share in these properties. To reiterate, though the Land Tribunal

granted / conferred occupancy rights in respect of Item Nos.3 to 6

in the name of 1st defendant, the said grant of occupancy rights

was on behalf of the joint family including the plaintiffs and the said

grant would enure to the benefit of all joint family members in the
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light of material on record and the well settled position of law stated

above. The trial court has clearly misdirected itself in failing to

consider and appreciate these factual and legal aspects and this

has resulted in erroneous conclusion warranting interference by

this Court in the present appeal.

Point No.2 is accordingly answered in favour of the

appellants- plaintiffs by holding that Item Nos.3 to 6 of the suit

schedule properties are joint family properties in which the plaintiffs

- appellants are entitled to their legitimate share and impugned

judgment and decree passed by trial court in this regard deserves

to be set aside and the suit of the appellants-plaintiffs deserves to

be decreed in their favour.

Re-Point No.3:-

7. A perusal of the material on recording including the

impugned judgment and decree will indicate that the suit of the

plaintiffs in relation to Item Nos. 7 to 11 of the suit schedule

properties was dismissed by the trial court. In this context, it is

relevant to state that the trial court recorded a finding based on

pleadings and evidence that the plaintiffs had not placed any

material to establish that Item Nos. 7 to 11 of the suit schedule

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properties were joint family properties and that the plaintiffs were

entitled to a share in the same. Even before this Court, the

plaintiffs have failed to substantiate or establish the manner of

acquisition of Item Nos. 7 to 11 and have not been able to prove

that these properties are joint family properties. Under these

circumstances, I am of the view that the trial court was fully justified

in rejecting the claim of the appellants – plaintiffs over Item Nos.7

to 11 of the suit schedule properties.

7.1 Accordingly, upon re-appreciation, re-evaluation and

reconsideration of the entire material on record, I am of the view

that the impugned judgment and decree passed by the trial court

dismissing the suit of the appellants – plaintiffs in relation to Item

Nos. 7 to 11 cannot be said to suffer from any illegality or infirmity

nor can the same be said to be capricious or perverse warranting

interference by this Court in the present appeal.

Point No.3 is accordingly answered against the appellants

by confirming the impugned judgment and decree dismissing their

suit in relation to Item Nos. 7 to 11 of the suit schedule properties.

Re-Point No.4:-
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8. While dealing with Point Nos.1 and 2 supra, I have

already come to the conclusion that Item No.1 and Item Nos. 3 to

6 of the suit schedule properties are joint family properties, in

which, the plaintiffs are entitled to their legitimate share and the

impugned judgment and decree dismissing the suit in respect of

these properties, deserves to be set aside and the suit of the

plaintiffs deserves to be decreed in respect of Item Nos.1, 3 to 6

of the suit schedule properties. So also, Item No.3 has been

answered against the plaintiffs by confirming the impugned

judgment and decree dismissing their suit in respect of Item Nos.

7 to 11 of the suit schedule properties. Under these

circumstances, I am of the view that the appeal deserves to be

partly allowed by setting aside the impugned judgment and

decree insofar as it relates to Item Nos.1 and 3 to 6 by decreeing

the suit of the plaintiffs in respect of these properties and by

confirming the impugned judgment and decree and by dismissing

the suit of the plaintiffs in respect of Item Nos. 7 to 11 of the suit

schedule properties.

Point No.4 is accordingly answered partly in favour of the

appellants-plaintiffs as indicated above.

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9. In the result, I pass the following:-

ORDER

(i) Appeal is hereby partly allowed.

(ii) The impugned judgment and decree dated 17.03.2018

passed in [Link].8050/1999 by the trial court dismissing the suit

of the plaintiffs in respect of Item Nos. 7 to 11 of the suit schedule

properties is hereby upheld and confirmed.

(iii) The impugned judgment and decree insofar as it relates

to Item Nos.1 and 3 to 6 is hereby set aside.

(iv) The suit of the plaintiffs is hereby decreed as sought for

by them in relation to Item Nos.1 and 3 to 6 by holding that the

plaintiffs are entitled to 1/6th share each in Item Nos.1 and 3 to 6

of the suit schedule properties.

Sd/-
([Link] KUMAR)
JUDGE

Srl.